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SECURITIZED DISTRUST PART TWO

Posted on August 2, 2012

The abuses and dishonesty and multiple breaches of contract within the shadow

banking world of securitized trusts appear to have been endless, now with new revelations regarding the rigging of Libor rates, as well as constituting a litigation puzzle for borrowers and for their attorneys seeking to use those abuses and dishonesty to their advantage. But how? SECURITIZED DISTRUST PART TWO provides another outstanding synopsis of the banking foreclosure fraud and little known hidden secrets used by lenders to defraud the borrowers and the courts. SECURITIZED DISTRUST PART TWO By Gary Victor Dubin

In the March 15, 2012 Issue of Deadly Clear, I summarized what for many were little known aspects and abuses of what has been going on behind the scenes, often unlawfully, in securitized trusts, where individual mortgage loans have been and still are being bundled together in the thousands, often undisclosed to borrowers or even to courts contrary to sworn disclosures in court papers made cavalierly under penalty of perjury to the contrary, and ownership certificates therein sold by Wall Street to investors like stocks, called mortgage backed securities.

Since then, borrowers and their attorneys throughout the Nation have been increasingly trying to find which securitized trust their mortgage loans may be in, no easy task, and to expose and use such associated abuses to defend against foreclosures. Some have found, for instance, that their foreclosing mortgagees never owned their

mortgage loans which were instead found trading in securitized trusts or even unlawfully were found placed simultaneously in more than one securitized trust, or that their mortgage loans were paid off by investor certificates and losses being reimbursed by insurance companies with TARP funds. The problem for borrowers and for their attorneys has been how to use that information and frequently violations of federal and/or state law either affirmatively or as a defense to foreclosure. Unfortunately, few state courts and almost no federal courts have, at least at first, responded positively to securitization issues, still seemingly content to ask only principally the question whether the loan has been paid current or if it is in default, as if it does not matter who actually owns the mortgage loan. The reluctance or intellectual inability of the judiciary generally to comprehend the importance of penetrating the inter-workings and machinations of securitized trusts has been historically largely understandable, stemming principally from a traditional mindset that views mortgage

loans as they were in an era of American banking that no longer exists.

Historically, when banks made mortgage loans, the borrowers were handed money upon signing promissory notes and upon signing mortgages as security instruments, and the banks put the promissory notes in their vaults and recorded the mortgages, and once fully paid returned the promissory notes to the borrowers and recorded a release of the mortgages. However, in the new Millennium for most lenders that procedure changed. Promissory notes and mortgages rapidly became securitized by Wall Street, and in effect unknown to borrowers, converted into continuously traded securities. As a result, the traditional state-based methods of tracking and regulating mortgage ownership through local recording offices and local agency regulators were bypassed, principally through use of the lender-created and lender-owned Mortgage Electronic Registration Systems, Inc., known commonly as MERS, which lead to the numerous abuses summarized in the original SECURITIZED DISTRUST article that appeared in Deadly Clear in March of this year. Largely unregulated, promissory notes (the originals of which contrary to UCC negotiable instruments laws appear initially reportedly to have mostly been shredded and digitized by securitized trusts for their alleged convenience) and related mortgages appear to have frequently not been placed in their assigned securitized trusts at all, defrauding investors, although said to have been and to be in securitized trusts, instead frequently used as collateral, for instance, for Federal Home Loan Bank loans or placed in additional securitized trusts, all akin intentionally to a Ponzi scheme. It appears that many investors in securitized trusts have been paid back their investments in whole or in part with insurance dollars, tempting loan servicers to falsely claim in court

that they own the mortgage loan so that they can run off with the foreclosed property or the proceeds of a foreclosure sale without ever owning the mortgage or paying anything for it. It also appears that many borrowers seeking with federal promises loan modifications have been strung along, sometimes for years, never being told that most securitized trusts cannot modify loans without investor approval, no matter whether, for instance, formally HAMP loan modification guidelines are met. The abuses and dishonesty and multiple breaches of contract within the shadow banking world of securitized trusts appear to have been endless, now with new revelations regarding the rigging of Libor rates, as well as constituting a litigation puzzle for borrowers and for their attorneys seeking to use those abuses and dishonesty to their advantage. But how? It is not usually sufficient, as many have with great disappointment learned at first, although it really should be successful in a perfect legal system, to argue in court, for instance, that insurance paid off the securitized investors, that your promissory note and mortgage were not in the trust at the securitized cut-off date, that the mortgage assignment to the securitized trust was robo-signed, that you are a third-party beneficiary of the securitized trust, that the REMIC tax laws were violated, and/or so on. Why not?

Presently, courts whose competence is unfortunately only slowly evolving in this area of the law and only at present in a few parts of the Country are beginning nevertheless to show some signs of catching on to the significance of securitized trust issues in foreclosure contexts, but nevertheless seem to only grudgingly grant borrowers relief where borrowers plead and can successfully outmaneuver the barbed wire of motions to dismiss and motions for summary judgment, and show actual prejudice as a result. This can usually with perseverance be shown, however, in several possible ways. First, the simplest way to show prejudice is to challenge the standing of your foreclosing mortgagee if you can show the court that your mortgage loan is instead in a securitized trust and your foreclosing mortgagee is not the securitized trustee, as having no right to your monthly payments, and perhaps owing you an accounting and back the money already paid by you unless it can establish it went to the trust. Second, another way is to show prejudice if you were denied a loan modification by claiming that the foreclosing mortgagee had no authority under the securitized trust to decide on a loan modification, yet strung you along and/or did not reasonably review your loan modification application under applicable federal guidelines in good faith. Third, another way is to allege that the required conditions precedent of notices of default,

right to cure, and acceleration were not given by the holder of your promissory note and mortgage or its actual representative while your loan was in a securitized trust. Fourth, if false pleading allegations and especially if false affidavits/declarations were submitted to the court as to the ownership of your mortgage loan, you should seek an order to show cause why your foreclosing mortgagee should not be held in contempt of court (and many States including Hawaii, New York, and New Jersey now hold the attorneys representing foreclosing mortgagees also liable and subject to disciplinary proceedings for such false submissions), or file a separate independent lawsuit for fraud on the court, again stressing how you have been injured incurring, for instance, attorneys fees and costs. Fifth, borrowers can also allege and prove prejudice if they paid a mortgage insurance premium, as many borrowers do, as a part of their loan agreement and monthly mortgage payment obligation, to the extent that it can be argued and in discovery it can be shown either that a mortgage insurance company made payments to the trust or to investors on their loan if they did not, or that their foreclosing mortgage damaged them by failing to submit an insurance claim,

while alleging that they were parties to that mortgage insurance policy, indeed, the payor, if not a direct third-party beneficiary. This has remained a largely low visibility and almost entirely ignored area of foreclosure defense. The above is not to suggest that borrowers and attorneys should not continue to also attack the securitized trusts head on, for example arguing that the trust laws of Delaware and New York, for instance, render acts of trustees void if property is treated by the trustee

in violation of the language of the trust instrument which in the case of securitized trusts is usually called its Pooling and Servicing Agreement, and/or that various mortgage assignments in its shadow banking world occurred while MERS was assigning a mortgage on behalf of an entity in bankruptcy proceedings and without the permission of the bankruptcy court and/or while not having listed the mortgage as an asset of the bankruptcy estate, amounting to bankruptcy fraud. Finding whether a loan is in one securitized trust or even unlawfully in more than one securitized trust is, however, not an easy task. Only a few law firms including mine and a few forensic advisors nationwide have found a reliable way to do that tricky research, and even then it appears that securitized trusts are understandably working around the clock to block such access at the present time.

This new research tool, although proving extremely valuable for an increasing number of borrowers, will no doubt be met with continued resistance by courts that, although becoming more and more educated on securitized trust abuses and the shadow banking system that securitized trusts and MERS have created, can be expected to nevertheless be, as usual, slow to

provide relief as millions of borrowers in the meantime will continue unjustly to be evicted from their homes. There are positive indications that finally state legislatures and local municipalities will more rapidly be coming to the rescue of abused borrowers very shortly, a new and expected development in the war against abusive securitized trusts to be highlighted in a subsequent article in Dearly Clear. Meanwhile, every borrower should immediately attempt to learn if his or her mortgage loan was or is trading in one or more securitized trusts as the first step in preparing a foreclosure defense or seeking damages thereafter for wrongful foreclosure even if already foreclosed on either judicially or nonjudically, and even if his or her property has already been sold.

DUBIN LAW OFFICES Suite 3100, Harbor Court 55 Merchant Street Honolulu, Hawaii 96813 Office: (808) 537-2300 Facsimile: (808) 523-7733 Email: gdubin@dubinlaw.net ___________________________________________________________________

Research is expensive however, it is the key in many cases as it uncovers layers of

fraud committed by the servicers, the lenders, the trustees and a host of other affiliates including MERS. What a joke MERS really is! Supposedly, through MERS the homeowners and investors are able to know precisely what is going on and where their loan is at any given timeWhat a crock of nonsense that is! Take the Pascual family for example. Aurora decided to foreclose in October 2009 after, of course, the modification dance first the forced default in order to get HAMP help, then the repetitive submission of paperwork, phone calls, more paperwork, more phone calls and eventually, the denial

Only Aurora failed to tell the Pascuals and the Court, Judge Seabright, (or anyone for that matter) that the Pascual loan was (and is) actively trading in the LEHMAN XS TRUST Mortgage Pass-Through Certificates, Series 2007-5H. The Trust did not foreclose and apparently had no damage to foreclose because the Trust tranche where the Pascual loan allegedly landed had no losses in 2009 everything was paid. It appears Aurora did not buy the loan out of the Trust because it is still actively trading and Aurora is only the servicer Ownership actually belongs to the Trust investors.

And there was no paperwork that accompanied the foreclosure notices or eviction complaint that would establish Aurora as anything more than a servicer

But it gets even better there is NO assignment of mortgage to the Trust to be foundAurora, the Master Servicer failed to file an assignment to the Trust in the Hawaii public

recordation; however, they filed an assignment from MERS to themselves oh, what a wicked web we weave, when first we practice to deceive When challenged with the truth that the Pascual loan was noted in the LEHMAN XS TRUST Aurora failed miserably. As stated in the recent Pascual Reply brief composed by Frederick Arensmeyer of the Dubin Law Offices: Rather than making any attempt to rebut this newly discovered evidence (which it clearly cannot do), Defendant Aurora in its opposition in complete disregard of its prior fraudulent misrepresentation to this court that it in fact was the holder of the note merely argues that Plaintiffs could have previously presented this evidence in their memorandum in opposition or at the hearing on Defendants motion for summary judgment. Defendant Aurora is mistaken, and its failure to offer any rebuttal is itself grounds for granting Plaintiffs instant motion.1 (citing in foonote 1): 1. Cf. Naranjo v. SBMC Mortg., 2012 WL 3030370, *3 (S.D. Cal., July 24,2012) (The vital allegation in this case is the assignment of the loan into the WAMU Trust was not completed by May 30, 2006 as required by the Trust Agreement. This allegation gives rise to a plausible inference that the subsequent assignment, substitution, and notice of default and election to sell may also be improper. Defendants wholly fail to address that issue. . .. This reason alone is sufficient to deny Defendants motion with respect to this issue. (Emphasis added)).

How does the average homeowner or their attorney find this information. As Mr. Arensmeyer continues in the reply brief: Plaintiffs contracted with a finance expert to conduct a very specialized investigation utilizing an advanced computer system regularly relied upon by professionals in the finance and investment industries. Furthermore, this newly discovered evidence is not of the type that is readily available to borrowers, the public, or even most attorneys, and Plaintiffs cannot reasonably have been expected to present such evidence before the prior hearing. Aurora never expected that anyone would research the loans on Bloomberg Terminal. It appears, Aurora (and their attorneys), obviously think of the judges, homeowners and foreclosure defense

lawyers as complete buffoons. This thought process enables them to think they can get away with fraud. Hopefully, Judge Seabright will throw the book at them sua sponte!
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This entry was posted in Uncategorized and tagged "Gary Victor Dubin", "Wall Street", Aurora, Bloomberg Terminal, Dubin Law Offices, Fraud, Frederick Arensmeyer, Judge Seabright, Julie Hanshaw, LEHMAN XS TRUST, Lorrie Womack, MERS, Michael J. Seabright, Mortgagebacked securities, Pascual, SECURITIZED DISTRUST, WaMu by Deadly Clear. Bookmark the permalink.

14 thoughts on SECURITIZED DISTRUST PART TWO

1.

justiceleague00 on August 2, 2012 at 8:53 pm said: Reblogged this on Justice League. Reply

2.

James Green on August 5, 2012 at 5:41 am said: This article is wonderful. Very insightful and pretty much what I have been saying since 2010 . In fact there is a case that i wrote the brief for a woman prose in Kings County New York where the end result was that the foreclosure judgment was vacated pursuant to CPLR 5015(a)2 and CPLR 5015(a)3 after the sale to defunct Fremont Investment and loan as result of them as plaintiff hiding who actually owned the note. Please Google Fremont vs Davilar.

The funny thing is that I did not have a Bloomberg terminal to uncover said evidence. In fact I used a little known federal law that requires a servicer if ask in writing pursuant to 15 USC 1641(f)2 and or 15 USC 1641(g)1 to reveal who is the actual owner of the mortgage as defined by the Federal Reserve. Litton the loan servicer at the time, spilled the beans and provided information that HSBC as Trustee was the real owner. Add this to the fact that I showed a pattern in other cases of them trying to do such a thing by misrepresenting that Fremont Investment and Loan was the owner of the loan during the action and the servicer ended up sending the borrower a 1099C to cancel said debt. I had a matter with Aurora Loan Services where they did the same thing and got a foreclosure judgment vacated and dismissed. I sent Aurora Loan Services the letter pursuant to 15 USC 1641(f)2 asking who owned the mortgage and note and there corporate lawyers Mcginnis ,Tessitore Wutchester LLP came back with LEHMAN XS TRUST Mortgage Pass-Through Certificates, Series 2006-15 as owner. The foreclosure was dismissed for failure to meet a condition precedent pursuant to CPLR 3211(a)7 Reply

Elisabeth Berger on August 5, 2012 at 9:52 pm said: Great Article Reat Reply! Aurora Loan Services LLC then Aurora BAnk FSB sold the service to a different company now out of Texas. Could you please send me your sample letter in order to request in writing pursuant to 15 USC 1641 (f)2 and or 15 USC 1641 (g)1 to reveal who the actual owner of the mortage is as defined by the Federal Reserve. That would be tramendously helpful for my foreclosure situation. Thank you so very much! Reply

Ben on August 6, 2012 at 5:40 am said: Please e-mail copy of letter, 15 usc 1641(f)2 asking who owns the mortgage and the note Thanks BH

Eloise Haake on September 12, 2012 at 11:23 am said: Please email me the sample letter , 15 usc 1641(f)2 asking who owns the mortgage and the note thanks for me> Eloise

Eugene Villarreal on August 6, 2012 at 2:15 am said:

Could you send me also your sample letter. Reply

Mark on August 6, 2012 at 10:34 am said: I would love a copy of that form letter as well so I can find where my loan is being traded. Reply

james green on August 12, 2012 at 5:55 pm said: Sorry this blog never notified me that it had replies. please email me at smartenupconsulting@gmail.com or copy the following posted here John Doe 100 Fulton Avenue Hempstead, NY 11550 IndyMac Mortgage Services P.O. Box 4045 Kalamazoo, MI 49003-4045 CERTIFIED MAIL RETURN RECEIPT# Re: Loan No: 12345676 To Whom It May Concern: This is a qualified written request under Section 6 of the Real Estate Settlement Procedures Act (RESPA). I understand that under Section 6 of RESPA and the Frank Dodd Act you are required to acknowledge my request within 5 business days and must try to resolve the issue within 20 business days. This is also a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692e Sec. 807 in regards to any additional information regarding your authority to collect this debt on behalf of the alleged creditor. I specially cite subsection (10) from the statue which states that the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer is a violation of this section. This is NOT a request for verification or proof of my mailing address, but a request for VALIDATION and your authority to negotiate and collect on behalf of the principal pursuant to the above named Title and Section, 5-701 and 5-702 of NY General Obligations Law

I respectfully request that your office provide me with competent evidence that you have legal authority to negotiate this debt on behalf of the name creditor with proof of agency status and that said creditor is the owner and holder of said instrument pursuant to 15 USC 1641(f)2. 15 USC 1641(f)2 states Servicer not treated as owner on basis of assignment for administrative convenience. A servicer of a consumer obligation arising from a consumer credit transaction shall not be treated as the owner of the obligation for purposes of this section on the basis of an assignment of the obligation from the creditor or another assignee to the servicer solely for the administrative convenience of the servicer in servicing the obligation. Upon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation. 15 USC 1641(g)1 states In addition to other disclosures required by this title, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including (A) the identity, address, telephone number of the new creditor; (B) the date of transfer; (C) how to reach an agent or party having authority to act on behalf of the new creditor; (D) the location of the place where transfer of ownership of the debt is recorded; and (E) any other relevant information regarding the new creditor. Please provide me with the following: What the money you say I owe is for; Explain and show me how you calculated what you say I owe; Provide me with copies of any papers that show I agreed to pay what you say I owe; (STATUE OF FRAUDS) Provide a certified copy of said note to show that said note is owned by the creditor. Identify the name, address, and telephone number current owner of the debt as defined by 15 USC 1641(f)2 and whether the debt has been transferred to any other creditor pursuant to 15 USC 1641(g)1 and the name of the new creditor address, and telephone number of the new creditor; the date of transfer; how to reach an agent or party having authority to act on behalf of the new creditor; the location of the place where transfer of ownership of the debt is recorded; and any other relevant information regarding the new creditor.; the result of the NPV test and the detailed explanation of the NPV methodology and model including all formulas and variables for the modification application for 100 Fulton Avenue Hempstead, New York 11550.

If your offices have reported invalidated information to any of the three major Credit Bureaus (Equifax, Experian or TransUnion), said action might constitute fraud under both Federal and State Laws. Due to this fact, if any negative mark is found on any of my credit reports by your company or the company that you represent I will not hesitate in bringing legal action against you for the following: Violation of the Fair Credit Reporting Act Violation of the Fair Debt Collection Practices Act Truth In Lending Act Defamation of Character Also during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel. This includes any information to a credit reporting repository that could be inaccurate or invalidated or verifying an account as accurate when in fact there is no provided proof that it is. If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately. I would also like to request, in writing, that no telephone contact be made by your offices to my home or to my place of employment. If your offices attempt telephone communication with me, including but not limited to computer generated calls or correspondence sent to any third parties, it will be considered harassment and I will have no choice but to file suit. All future communications with me MUST be done in writing and sent to the address noted in this letter. This is an attempt to correct your records, any information obtained shall be used for that purpose. Best Regards, John Doe

Miles on October 2, 2012 at 11:32 am said: Hello James, Very insightfulI am in California and had a property sold under the direction of MERS with Aurora as Servicer back in 2006. Unaware of the procedural rules you have noted. Can a foreclosure be reversed by not following these rules? Reply

3. Pingback: Deadly Clear | SECURITIZED DISTRUST PART TWO | Challenge Your Lender 4. Pingback: SECURITIZED DISTRUST PART TWO

5.

Charles Reed on August 6, 2012 at 6:09 am said: I been reporting this exact situation with MERS, Wells Fargo Bank and Ginnie Mae. It so refreshing to see the world is finally getting it. This crime is huge a most Americans dont realize the financial problem they are faced with because of Ginnie Mae Mortgage Backed Securities and the crimes committed with the illegal foreclosures that have been committed. This is about Contract Law! Reply

6.

Bonnie Palinkas on February 22, 2013 at 7:52 am said: In 2008 we re-mortgaged with Countrywide Home Loans (FHA loan). There was an accident and we filed for partial claim #1. Took over 1 year of massive paperwork and the claim was accepted and paid. Back to normal servicing. Countrywide sold out to BAC Home Loans and then transitioned to Bank of America. In 2010 husbands health failed and filed partial claim #2. FHA approved and paid claim in August 2010. Thereafter received letter from BAC Home Loans back to normal servicing and Precepatae to Discontinue and End filed in courthouse by BAC attorneys. In October 2010 received notice of intent to foreclose. We frantically called FHA and BOA to see what happened, as we continued to pay our monthly mortgage payments. FHA blamed BOA and vica versa. In the end spoke to a CEO at FHA (Kevin) and was told they were instructed to reverse payments due to an overpayment. FHA reversed ALL payments made on PC2, and never notified us of their intentions, nor did BAC Home Loans notify us of their intentions to have payments reversed. We continually made monthly mortgage payments until BOA (now Bank of America and not BAC Home Loans) would not accept our payment in March of 2012. We had hired an attorney in Florida (May of 2012) and nothing seems to be spurring on it. We have an IRS lien for PIT 2005, 2006 holding back the modification process. BOA wants a certification of subordination from IRS and IRS wants proof that mod will take place (a catch 22 situation here). None of this would have happened hadnt the payments been reversed. We have wrong doing done to us here. We have had 2 court hearings; granted 60 day stay at both. Time is running out. We now had to go per the advice of the Court Master to CACLV to get help. Any help would be appreciated on our situation at hand. We have lived in our home since 1974 and do not want to lose our home. Reply

Deadly Clear on February 22, 2013 at 8:06 am said:

There are several good foreclosure defense attorneys in Florida Not many good Judges though. Jacqulyn Mack, Mack Law Firm; Matt Weidner two good defense attorneys off the top of my list. Sure there are several more. Reply

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